In January 2022, almost seven years after the incidents, Gardner-Hopkins was suspended from practice for two years as of February 7, 2022.
During the penalty hearing decision, the tribunal said: “In the evidence, Mr Gardner-Hopkins confirmed that there were professional roles within the resource management area which he could undertake without the need for a practising certificate.
“He had also made preliminary inquiries with a recruitment consultant. It would be surprising if a man of his talents could not obtain gainful employment were he to be prohibited from practising law.”
A Law Society standards committee sought an appeal, hoping for Gardner-Hopkins to be disbarred. Gardner-Hopkins did the same, but to reinstate his practising certificate. The High Court came out swinging and said the tribunal fell into error in accepting Gardner-Hopkins’ financial and professional consequences.
Instead, Justices Venning, Ellis and Hinton said misconduct and sexual exploitation of the young women warranted the most serious response available short of strike-off, so the suspension was increased to three years.
Justices Venning and Ellis then declined Gardner-Hopkins’ application for leave to appeal the High Court decision. And here we are. Gardner-Hopkins’ suspension will expire in February 2025.
The case we’re talking about today
The judicial review decision dates back to August last year, when the Ngāti Pāoa Trust Board, the representative body for the iwi Ngāti Pāoa, nominated Gardner-Hopkins to sit on an expert consenting panel to consider an application for a retirement village in Riverhead, Auckland.
The nomination included a letter outlining Garder-Hopkins’ 20-plus years of experience in resource management, accreditation under the Resource Management Act, and previous appellate-level experience, including acting for the board previously.
Judge Newhook first sought an alternative nomination, citing a lack of tikanga Māori and mātauranga Māori expertise. Various emails followed.
Among them was a letter by Gardner-Hopkins, who said he had “weathered the media storm” for many years and did not consider the appointment to compromise his ability to “perform the functions of office”. He also said he was humbled by the board’s efforts and support.
Gardner-Hopkins’ nomination to be included on the Riverhead panel was declined on the basis of the circumstances leading up to his suspension.
“The grounds for deciding not to appoint a person extend beyond matters of technical expertise, and encompass broader matters relevant to the person’s performance of the functions of office,” Judge Newhook said.
“They can include matters going to personal character and integrity, including the fact of and circumstances surrounding Mr Gardner-Hopkins’ suspension from legal practice.”
Fast-forward to May’s judicial review: the Ngāti Pāoa Trust Board alleged an error of law and breach of Te Tiriti o Waitangi and/or tikanga Māori. It said Judge Newhook unlawfully exercised his discretion, took into account irrelevant considerations, and sought costs, a quashing of the decision and a declaration accordingly.
When I first read the May decision, I thought, gosh, the board must really like Gardner-Hopkins. Interestingly, Julian Long represented the trust board here. He also represented Gardner-Hopkins during the Lawyers and Conveyancers Disciplinary Tribunal hearing years earlier.
In May, the Wellington High Court’s Justice Peter Churchman released his judicial review decision. He said he was satisfied Newhook was entitled under the statutory scheme to decline Gardner-Hopkins’ nomination. But the convener erred by taking into account “irrelevant considerations”.
“I consider that to prevent Mr Gardner-Hopkins from assuming roles outside those performed in a legal capacity on the basis solely of his suspension from such practice would be to punish him again for the same misconduct, which has already been fully dealt with in his suspension from legal practice, and in fact cut across the finality of the tribunal and high court decisions and orders.”
Where do you draw the line?
It’s not the first time Gardner-Hopkins has faced obstacles. In May 2022, Chief Environment Court Judge David Kirkpatrick denied an application for the suspended lawyer to appear before the court on behalf of the Ngā Hapū o Ngā Moutere Trust.
While no party opposed the application, it tested the extent to which someone who is suspended from legal practice can appear before the court.
Section 275 of the Resource Management Act outlines a general right of representation and an exception to the restrictions under sections 21 and 24 of the Lawyers’ and Conveyancers’ Act.
Justice Kirkpatrick said the trust’s preference didn’t displace the application of a disciplinary order to protect those Gardner-Hopkins sexually harassed, the public generally and the reputation of the legal profession.
He said it was in conflict with the interests of justice.
Where was the judicial review in this case? And where do you draw the line between accountability and double punishment?
Should Gardner-Hopkins have been disbarred? I think so. But should those actions mean he is prevented from employment opportunities acting as an “experienced consultant and adviser”, as his LinkedIn profile reads? We’ll soon find out.
